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This Act may be cited as the Northern Australia Infrastructure Facility Act 2016.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | 1 July 2016. | 1 July 2016 |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The main object of this Act is to establish the Northern Australia Infrastructure Facility to provide financial assistance to the States and Territories and other entities for the development of Northern Australia economic infrastructure.
An additional object of this Act is to facilitate the provision of financial assistance for the development of Northern Australia economic infrastructure that meets the particular needs of Indigenous persons.
Northern Australia economic infrastructure is infrastructure that:
provides a basis for economic growth in Northern Australia; or
stimulates population growth in Northern Australia.
Infrastructure located outside Northern Australia can be Northern Australia economic infrastructure as long as it meets the requirement set out in paragraph (2)(a) or (b).
This Act establishes the Northern Australia Infrastructure Facility to provide financial assistance to the States and Territories and to other entities for the development of Northern Australia economic infrastructure.
The Facility may determine terms and conditions for the provision of financial assistance.
The Board of the Facility must act in accordance with directions given by the responsible Ministers (the Finance Minister and the Minister for Northern Australia). The directions are known as the Investment Mandate.
The Minister for Northern Australia has the opportunity to consider proposals to provide financial assistance for the development of Northern Australia economic infrastructure, and may decide that particular financial assistance should not be provided.
In this Act:
Aboriginal person has the same meaning as in the Aboriginal and Torres Strait Islander Act 2005.
appointed member means a member appointed under section 15.
Australia’s greenhouse gas emissions reduction targets means:
if:
Australia’s current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
in any other case—the greenhouse gas emissions reduction targets included in:
Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.
Board means the Board of the Facility.
CEO means the Chief Executive Officer of the Facility.
Chair means the Chair of the Board.
Facility means the Northern Australia Infrastructure Facility established by section 6.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
financial assistance, in relation to the function conferred on the Facility by subsection 7(1A), includes assistance in the form of loans, letters of credit, guarantees, purchase of bonds, and equity investments.
Indigenous person means:
an Aboriginal person; or
a Torres Strait Islander.
Investment Mandate: see subsection 9(2).
Local Government Area means a local government area recognised by the Australian Bureau of Statistics.
member means a member of the Board and includes the Chair.
Minister for Northern Australia means the Minister who administers this Act.
Minister’s consideration period: see subsection 11(3).
Northern Australia means the area that includes the following:
the Northern Territory;
the areas of Queensland and Western Australia that are North of the Tropic of Capricorn other than the Meekatharra Statistical Area level 2;
the areas South of the Tropic of Capricorn of each Statistical Area level 2 that has an area covered by paragraph (b);
the following Statistical Areas level 2:
Gladstone;
Gladstone Hinterland;
Carnarvon;
the Territory of Christmas Island;
the Territory of Cocos (Keeling) Islands;
the Local Government Areas of Meekatharra and Wiluna (despite paragraph (b));
the Local Government Area of Ngaanyatjarraku;
the territorial sea adjacent to areas covered by paragraphs (a) to (db).
Northern Australia economic infrastructure: see subsection 3(2).
Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
proposal notice: see subsection 11(2).
rejection notice: see subsection 11(4).
responsible Ministers means the Finance Minister and the Minister for Northern Australia.
Secretary means the Secretary of the Department.
Statistical Area level 2 means a statistical area level 2 recognised by the Australian Bureau of Statistics.
subsidiary of the Facility means a subsidiary of the Facility for the purposes of the Public Governance, Performance and Accountability Act 2013.
Torres Strait Islander has the same meaning as in the Aboriginal and Torres Strait Islander Act 2005.
In this Act, a reference to the Minister is a reference to the Minister for Northern Australia.
The Northern Australia Infrastructure Facility is established by this section.
The Public Governance, Performance and Accountability Act 2013 applies to the Facility. That Act deals with matters relating to Commonwealth entities, including reporting and the use and management of public resources.
The Facility:
is a body corporate; and
must have a seal; and
may acquire, hold and dispose of real and personal property; and
may sue and be sued.
The Facility’s seal is to be kept in such custody as the Board directs and must not be used except as authorised by the Board.
Grants of financial assistance to the States and Territories
The functions of the Facility are:
to provide grants of financial assistance to the States and Territories for the development of Northern Australia economic infrastructure; and
to determine terms and conditions for the grants of financial assistance; and
as agreed between the Facility and the States and Territories, to provide incidental assistance to the States and Territories in relation to financial arrangements and agreements related to the terms and conditions of the grants of financial assistance.
Financial assistance to other entities
It is also a function of the Facility to provide financial assistance to entities other than the States and Territories, and determine terms and conditions for the provision of that financial assistance, for the development of Northern Australia economic infrastructure:
that is with respect to, or in, a Territory; or
that is with respect to benefiting Indigenous persons; or
that is with respect to trade and commerce:
between Australia and places outside Australia; or
among the States; or
within a Territory, between a State and a Territory, or between 2 Territories; or
that is with respect to a postal, telegraphic, telephonic or other like service to which paragraph 51(v) of the Constitution applies; or
that is for the purposes of the defence of the Commonwealth and the States; or
if the entity is a corporation to which paragraph 51(xx) of the Constitution applies and the financial assistance is not in the form of equity investments; or
that is with respect to external affairs, including:
giving effect to any international agreement to which Australia is a party; and
addressing matters external to Australia; and
contributing to the achievement of Australia’s greenhouse gas emissions reduction targets; or
that is with respect to railway construction or extension to which paragraph 51(xxxiv) of the Constitution applies; or
that is with respect to activities that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation; or
that is with respect to matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.
Equity investments
The Facility may provide financial assistance in the form of equity investments under subsection (1A) by making investments itself (including as a participant in partnerships, trusts, joint ventures or similar arrangements), through subsidiaries or other investment vehicles, or by any combination of these means. The Facility must not provide financial assistance in any other form under subsection (1A) through subsidiaries.
Acquisition of derivatives
The Facility may only acquire a derivative for the purpose of:
protecting the value of financial assistance provided by the Facility (other than derivatives acquired by the Facility); or
protecting the return on financial assistance provided by the Facility (other than derivatives acquired by the Facility); or
achieving indirect exposure to financial assets (other than derivatives) for a purpose in connection with the Facility’s function of providing financial assistance; or
achieving transactional efficiency for a purpose in connection with the Facility’s function of providing financial assistance;
but must not acquire a derivative for the purpose of:
speculation; or
leverage.
Subsection (1C) does not apply in relation to guarantees given by the Facility in the ordinary course of providing financial assistance.
The Facility has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
If the Facility decides to provide financial assistance (other than in the form of equity investments) to a corporation to which paragraph 51(xx) of the Constitution applies:
the terms and conditions on which the assistance is to be provided must be set out in a written agreement between the Facility and the corporation; and
the corporation must comply with the terms and conditions.
Without limiting subsection (1), the terms and conditions must provide for the circumstances in which the corporation must repay amounts to the Facility.
The Facility must not make a decision after 30 June 2036 to provide financial assistance for the development of Northern Australia economic infrastructure.
However, subsection (1) does not prevent the Facility from doing either of the following:
deciding before 30 June 2036 to provide financial assistance after that day;
varying the terms and conditions for financial assistance provided before or after 30 June 2036.
The responsible Ministers must, by legislative instrument, give directions to the Board about the performance of the Facility’s functions.
Section 42 (disallowance) of the Legislation Act 2003 does not apply to the direction—see regulations made for the purposes of paragraph 44(2)(b) of that Act.
The directions are the Investment Mandate.
Compliance with Investment Mandate
The Board must take all reasonable steps to ensure that the Facility and its subsidiaries comply with the Investment Mandate.
As soon as practicable after the Board becomes aware that the Facility or one of its subsidiaries has failed to comply with the Investment Mandate, the Board must give the responsible Ministers a written statement:
informing the responsible Ministers; and
setting out the action that the Facility proposes to take in order to ensure that the Facility or subsidiary complies with the Investment Mandate.
If the responsible Ministers are satisfied that the Facility or one of its subsidiaries has failed to comply with the Investment Mandate, the responsible Ministers may (whether or not the Board has given the responsible Ministers a statement under subsection (3A)), by written notice given to the Board, direct the Board:
to give the responsible Ministers, within a period specified in the notice, a written explanation; and
to take action specified in the notice, within a period specified in the notice, in order to ensure that the Facility or subsidiary complies with the Investment Mandate.
The Board must comply with a direction under subsection (3B).
A failure to comply with:
the Investment Mandate; or
a direction under subsection (3B);
does not affect the validity of any transaction.
A direction under subsection (3B) is not a legislative instrument.
Limit on Investment Mandate
The Investment Mandate must not direct, or have the effect of directing, the Facility to provide financial assistance:
for the development of particular infrastructure; or
in relation to a particular person.
The Investment Mandate may include directions about the following:
objectives the Facility is to pursue in providing financial assistance;
strategies and policies to be followed for the effective performance of the Facility’s functions;
loan characteristics for circumstances in which financial assistance is used to provide or support loans;
providing financial assistance for purposes other than to provide or support loans;
matters relating to the provision of financial assistance in the form of equity investments, including limits on the amount that may be provided in this form, the rate of return, and the management of risks;
eligibility criteria for financial assistance;
risk and return in relation to providing financial assistance;
any other matters the responsible Ministers think appropriate.